Robert B. Wister v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-7159
ROBERT B. WISTER,
Claimant-Appellant,
v.
ERIC K. SHINSEKI,
Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in
08-0196, Chief Judge William P. Greene, Jr.
Before GAJARSA, LINN, and PROST, Circuit Judges.
PER CURIAM.
ORDER
Robert B. Wister and the Secretary of Veterans Affairs each respond to the
court's order concerning whether Robert B. Wister's appeal should be dismissed as
premature. Wister submits a supplemental response.
The United States Court of Appeals for Veterans Claims entered an order
denying Wister's motion to strike the Secretary's designation of the record on July 10,
2008. Wister filed a notice of appeal seeking review of the July 10 order. Because it
appeared that the July 10 order was not a final decision, this court directed Wister to
show cause why his appeal should not be dismissed as premature.
Wister responds that the court has authority to review the order on appeal
pursuant to 5 U.S.C. §§ 301 and 706. Pursuant to 5 U.S.C. § 301, the head of an

-- 1 of 2 --

executive department may prescribe regulations. 5 U.S.C. § 706 sets forth the scope of
review of certain agency actions. Neither provision provides this court with jurisdiction
to review interlocutory decisions of the Court of Appeals for Veterans Claims.
This court's jurisdiction is generally limited to reviewing final decisions of the
Court of Appeals for Veterans Claims. See 38 U.S.C. § 7292. In this case, the Court of
Appeals for Veterans Claims has not issued a final decision. Thus, the appeal is
dismissed.
Accordingly,
IT IS ORDERED THAT:
The appeal is dismissed.
Each side shall bear its own costs.
FOR THE COURT
FEB 6 2009 /s/ Jan Horbaly
Date Jan Horbaly
Clerk
cc: Robert B. Wister
Christopher A. Bowen, Esq.
s17
FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
FEB 0 6 2009
Alt) iTOHISHLY
CLERK
2008-7159 2

-- 2 of 2 --